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In the case between Doctor Brisbane, as curator for the Lord Napier, and two Glasgow merchants, to whom he had sold some of my Lord's victual of the lands of Carnock, and charged them on the contract for the price, their reasons of suspension were, 1mo, That they offered to prove, by the writer and witnesses inserted, that he was obliged to have carried these corns to a place 20 miles farther distant than the part where he delivered it, and so was liable arbitraria actione de eo quod certo loco. Answered, He opponed the contract bearing no such thing, which could not be taken away by witnesses. “The Lords found this only probable scripto vel juramento.”
Then they offered back the victual as now insufficient. “The Lords found the victual, by the year's keeping, would deteriorate, and therefore found the charger was not obliged to take it back now.” See Sale.
Fol. Dic. v. 2. p. 219. Fountainhall, v. 1. p. 316.
